Thursday, April 1, 2010

Another Judge Rules Warrantless Wiretapping is ILLEGAL!

Three cheers!!! A federal judge (Vaughn Walker) ruled yesterday that "the National Security Agency's program of surveillance without warrants was illegal, rejecting the Obama administration's effort to keep shrouded in secrecy one of the most disputed counter terrorism policies of former President George W. Bush." Judge Vaughn Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance.

I've got another great piece by Glenn Greenwald on the outstanding news that yes, a crime is still, at least sometimes when committed by the government in its phony "war on terror, STILL A CRIME in this country. I want to let Greenwald provide the larger context regarding this victory, which I will get to shortly, but for those that haven't been following the long, strange legal trip that warrantless wiretapping has gone through, or need a little refreshing, let me provide a little backdrop by reposting a past summation I've given here:

First, to highlight the gravity of this issue and why its still critically important to address, in 2008, a government report was released that disclosed that President Bush authorized secret surveillance activities that went beyond the previously disclosed NSA program – raising the prospect of additional unlawful conduct (which has now been confirmed!).

This new information had led to concerns in Congress about the agency’s ability to collect and read domestic e-mail messages of Americans on a widespread basis. Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation.

Then we got another report, mandated by Congress and produced by the inspectors general of five federal agencies, that found that other intelligence tools used in assessing security threats posed by terrorists provided more timely and detailed information. In fact, NOT ONE instance could be cited that demonstrated the wiretapping program prevented any attack of any kind, ever. Nor did it lead to the capture of any terrorists.

In light of these facts, one would think that the Obama Administration would come down somewhere at least close to the position that candidate Obama espoused on the campaign trail. Sadly, the opposite has been true, as demonstrated by the Administration's pro-wiretapping, state secrets expanding stance.

Rather than trying to take the public policy route, groups like EFF went to the Courts. Initially, Judge Walker ruled in 2006 that the AT&T customers could sue the company for allegedly allowing federal agents to intercept their calls and e-mails and seize their records without a warrant.

Then in 2008, he threw out more than three dozen lawsuits claiming that the nation’s major telecommunications companies had illegally assisted in the wiretapping without warrants program approved by President Bush after the 2001 terrorist attacks.

But, while he said the objections of the privacy groups were not strong enough to override the wishes of Congress, Judge Walker did show some sympathy for the plaintiffs’ claims.

He had refused the government’s efforts to invoke the “state secrets” privilege and had moved toward compelling the Justice Department to turn over documents. EFF and the ACLU appealed the case - a case in which Judge Walker kept intact related claims against the government over the wiretapping program...which he has now ruled in favor of the people and the Constitution!

Before I get to Greenwald, here's Olbermann's March 31st interview with New York Times journalist James Risen - the reporter who first broke this story:

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Now to Greenwald:

While torture and aggressive war may have been the most serious crimes which the Bush administration committed, its warrantless eavesdropping on American citizens was its clearest and most undeniable lawbreaking. Federal District Judge Vaughn Walker yesterday became the third federal judge -- out of three who have considered the question -- to find that Bush's warrantless eavesdropping program was illegal (the other two are District Judge Anna Diggs Taylor and 6th Circuit Appellate Judge Ronald Gilman who, on appeal from Judge Taylor's decision, in dissent reached the merits of that question [unlike the two judges in the majority who reversed the decision on technical "standing" grounds] and adopted Taylor's conclusion that the NSA program was illegal).

That means that all 3 federal judges to consider the question have concluded that Bush's NSA program violated the criminal law (FISA). That law provides that anyone who violates it has committed a felony and shall be subject to 5 years in prison and a $10,000 fine for each offense. The law really does say that. Just click on that link and you'll see. It's been obvious for more than four years that Bush, Cheney, NSA Director (and former CIA Director) Michael Hayden and many other Bush officials broke the law -- committed felonies -- in spying on Americans without warrants. Yet another federal judge has now found their conduct illegal. If we were a country that actually lived under The Rule of Law, this would be a huge story, one that would produce the same consequences for the lawbreakers as a bank robbery, embezzlement or major drug dealing. But since we're not such a country, it isn't and it doesn't.

Although news reports are focusing (appropriately) on the fact that Bush's NSA program was found to be illegal, the bulk of Judge Walker's opinion was actually a scathing repudiation of the Obama DOJ. In fact, the opinion spent almost no time addressing the merits of the claim that the NSA program was legal. That's because the Obama DOJ -- exactly like the Bush DOJ in the case before Judge Taylor -- refused to offer legal justifications to the court for this eavesdropping. Instead, the Obama DOJ took the imperial and hubristic position that the court had no right whatsoever to rule on the legality of the program because (a) plaintiffs could not prove they were subjected to the secret eavesdropping (and thus lacked "standing" to sue) and (b) the NSA program was such a vital "state secret" that courts were barred from adjudicating its legality.

Those were the arguments that Judge Walker scathingly rejected. All of the court's condemnations of the DOJ's pretense to imperial power were directed at the Obama DOJ's "state secrets" argument (which is exactly the same radical and lawless version, as TPM compellingly documented, used by the Bush DOJ to such controversy).

Click here for more.

In my statement to the PUC just two weeks ago, I addressed the steady deterioration of privacy as both a right, and an idea, and used the warrantless wiretapping issue as one example. I stated, "It wasn’t long ago that the idea of our government wiretapping American citizens without warrants for purposes other than national security would have been revolting. Now its official Government policy – and the telecom companies that participated in these crimes have been given retroactive immunity while continuing to make billions off overcharging the same customers they betrayed."

I'm happy to say that my assertion was validated by yet another judge, that being the program was ILLEGAL, but I am unhappy to say that this story has not received the media and political attention it deserves - one of my other consistent assertions on this blog, and to the PUC.

To recap the general, and radical State Secrets interpretation advocated by both the Bush and Obama Administration's - blasted out of the water yesterday by Judge Walker - the White House can block courts from ruling on the legality of their alleged crimes by simply defining it as a vital "secret".

But that wasn't the only nefarious argument made by the Administration and rejected by the judge. The other was that since citizens cannot show their messages were intercepted or specify the damage done to them, they have no right to sue. And since this information is top secret, disclosure of who was targeted and why would be a threat to national security. You get the idea...its a kind of circular logic that ensures two things: the government gets away with their crimes and the people suffer the consequences.

Thankfully, in this case, the Obama Administration was unsuccessful in broadening the scope of this privilege, which would have given the Executive Branch even more power and unaccountability than it already has - serving to validate and reinforce Vice President Cheney's "unitary executive" theory that gained such traction during the Bush years.

Do we really want our Presidents shielded from judicial review or accountability when he/she is accused of breaking the law? Should entire cases be thrown out simply because the Executive Branch claims that there is something in some document that is so secret it will threaten our national security?

Now, according to yet another judge, the answer to these questions is an emphatic NO.

I do find it disturbing that the media, and certainly the right wing, still seem to treat the legality of this program as a "debate", and NO demands are being made for prosecution. The fact is, it hasn't been a "debate" since it was first exposed in 2005. It was blatantly illegal then, and blatantly illegal still. Yet, we have yet to hear ANYTHING about prosecuting those that committed these crimes, or ensuring that similar crimes won't happen again...which current so called protections and reforms allow.

As Glenn Greenwald noted, "Three federal judges have now concluded that it was illegal. And yet not only do we do nothing about it, but we stand by as the Obama administration calls this criminal program a vital "state secret" and desperately tries to protect it and the lawbreakers from being subject to the rule of law. This decision may make it more difficult for the Obama administration to hide behind sweeping secrecy claims in the future, but it won't negate the fact that we have decided that our leading political officials are completely free to commit crimes while in power and to do so with total impunity."

More to come...

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